Tuesday, May 29, 2012

The
Reconstruction Congress that proposed the Fifteenth Amendment to prohibit
racial discrimination in voting recognized that recalcitrant states and
localities might employ some ingenious devices, like poll taxes or literacy
tests, to deny suffrage to newly freed slaves. The drafters feared, however,
that putting specifics into the amendment could jeopardize ratification. So they made do with a prophylactic safeguard
that gave future Congresses the power to “enforce” the amendment “through
appropriate legislation.”

Over the
next century, states in the Deep South and elsewhere resorted to any number of
ostensibly neutral but patently discriminatory devices to keep African
Americans from voting. Only after decades of disenfranchisement of African
Americans, often accomplished through brutal force, did Congress finally pass
“appropriate” legislation: the Voting Rights
Act of 1965.

Today, the
Voting Rights Act is recognized as the essential instrument in gaining a nearly
equal franchise for African Americans to that of white Americans. Paradoxically,
it has been so successful that one of its two central provisions is now under
constitutional challenge as no longer necessary. And that issue is only one
step away from the Supreme Court, after a ruling this month (May 18) to uphold
the act’s so-called preclearance provision despite doubts raised by the high
court itself.

The
preclearance provision, section 5 in the act, requires covered states and
localities to submit any change in election law or procedure
to the U.S. Justice Department or a three-judge federal court in Washington
before adoption. Five Deep South states are covered (Alabama, Georgia,
Louisiana, Mississippi, and South Carolina), based on criteria included in the
original act and tweaked several times since. Virginia was also originally
covered in toto, but some local jurisdictions have used the act’s so-called
bailout provision, section 4(a), to get out of the requirement. Alaska and
portions of other states have come under the requirement in the years since
because of low registration of minority voters.

Evidently,
the South of the early 21st century is much different from the South
of the 1960s. Among those noting the difference is Chief Justice John G.
Roberts Jr., writing in the decision three years ago that left the preclearance
provision in place, at least for now. “Things
have changed in the South,” Roberts wrote for an all but unanimous court in
Northwest Austin Municipal Utility District No. 1 v. Holder
(2009). “Voter turnout and registration rates now approach parity. Blatantly
discriminatory evasions of federal decrees are rare. And minority candidates
hold office at unprecedented levels.”

Congress,
however, was not so sanguine in 2006 when it renewed the Voting Rights Act,
including the preclearance provision, for another 25 years and by substantial
bipartisan majorities. The ruling by the U.S. Court of Appeals for the District
of Columbia Circuit in the new challenge, Shelby County (Ala.) v.
Holder, cites some of the evidence that Congress heard before deciding
to leave section 5 intact.

Writing for
the majority, Judge David Tatel noted several modern instances of blatant
racial discrimination in the covered Deep South states. As one example, Walker
County, Texas, sought to lower black voting in 2004 by reducing early voting at
polling places near a historically black university and threatening to
prosecute students for illegal voting. In another, Kilmichael, Miss., abruptly
canceled an election in 2001 when “an unprecedented number” of African
Americans ran for office. Another: Webster County, Ga., redrew school board
districts in 1998 after a majority black school board was elected for the first
time.

Just as
important in the appeals court’s view are the instances of potential
discrimination that have not been instituted thanks to the
preclearance requirement. The Justice Department continues to use section 5 to
block questionable election law changes by interposing objections – about 28
times per year. That rate that has remained somewhat constant since 1965. In
addition, jurisdictions sometimes withdraw proposed changes after the Justice
Department requests more information. Congress counted about 800 such instances
from 1990 to 2005.

The Justice
Department also combats racial discrimination with the act’s other central
provision: section 2, which prohibits nationwide any election law change that
has the effect of denying or abridge minorities’ voting rights. Between 1982
and 2005, the government won 653 section 2 suits in covered jurisdictions –
more than 25 per year. As Tatel noted, however, section 2 litigation is less
effective than the preclearance provision at preventing
racial discrimination because the remedy kicks in only after the questioned
changes have been put into effect.

In dissent,
Judge Stephen Williams saw no logic to continuing to single out some states and
localities for disfavored treatment. He noted the paradox that the Supreme
Court allowed Indiana to implement a photo-ID voting requirement, but the
Justice Department has blocked similar laws in South Carolina and Texas. The
majority’s answer lies with statistics that show voting rights issues continue
to crop up disproportionately in the Deep South states. And they note that the
law has been revised to make it easier for jurisdictions to prove a clean
voting rights record and get out from under the preclearance requirement.

Those
considerations were good enough for Congress to pass and President George W.
Bush to sign a long renewal of the Voting Rights Act. It remains to be seen
whether they will be good enough for a Supreme Court that professes judicial
restraint but often practices something else.

Sunday, May 20, 2012

The secret
deliberations of Supreme Court justices ordinarily emerge, if at all, only
years after the fact. But in a startling, if understated, scoop, Jeffrey Toobin
has disclosed what he depicts as suspect maneuvering in a decision barely two
years old: the 5-4 ruling in the Citizens United case, which gave corporations
a First Amendment right to spend unlimited sums on political campaigns.

Toobin, the
prolific author and CNN legal commentator, broke the news of the
behind-the-scene events in an article in the New Yorker,
excerpted from his forthcoming book due out in September The Oath: The
Obama White House vs. The Supreme Court. In an article that bears the
accusatory subhead, “How John Roberts orchestrated Citizens
United,” Toobin blames Roberts for converting what could have been a
narrow, statutory decision on federal campaign finance law into an aggressive,
precedent-overruling decision granting corporations a constitutional right to
tilt the political system in favor of the Republican Party.

The
sequence of events in Citizens United is public record. The
oral arguments in March 2009 were followed by the court’s surprising decision
in late June to call for rearguments in September. The court issued its ruling
in January 2010 in a forceful majority opinion by the supposedly moderate
conservative Anthony M. Kennedy along with a long and passionate dissent by the
couort’s senior liberal, John Paul Stevens.

With no
named sources, Toobin adds to the public record by disclosing that Roberts
initially wrote a self-assigned majority opinion on narrow grounds that failed
to gain majority support from the conservative bloc after Kennedy wrote a
concurrence calling for a broader decision. Kennedy’s now-majority opinion drew
a vigorous dissent from David H. Souter, who pointedly complained about the
irregularity of ruling on a question not presented and argued in the case.
Stung, Roberts decided to call for a second round of arguments specifically to
address the question of overruling the court’s two precedents upholding bans on
direct corporate or union spending in political races.

As Toobin writes  and as court watchers
understood at the time  the outcome of the second round of arguments was
predetermined. The conservative majority would not have asked about overruling
the prior cases unless they planned to follow through  as they did. The
result, Toobin concludes, “represented a triumph for Chief Justice Roberts.”

“Even
without writing the opinion,” Toobin continues, “Roberts, more than anyone,
shaped what the Court did. As American politics assumes its new form in the
post-Citizens United era, the credit or the blame goes
mostly to him.”

Toobin’s
conclusion matches the theme of the new book: a popularly elected, Democratic
president versus an unelected court split along partisan lines with Republican
appointees in the majority. But one does not have to approve of
Citizens United or the Roberts Court’s aggressive stance on
campaign finance and other, even hotter-button issues such as abortion and
school integration to find the singling out of Roberts unsupported by
the evidence.

Omitted in
Toobin’s telling is any mention of Roberts’s unusual, 14-page concurring
opinion seeking to square his vote in the case with what he calls “the
important principles of judicial restraint and stare
decisis”  that is, respect for precedent. Retracing some of the
ground from Kennedy’s opinion, Roberts argues that the first of the two
precedents being overruled, Austin v. Michigan Chamber of
Commerce (1990), was an “aberration” at the time and was now being
defended by the government on untenable grounds not used in the original
decision. Stare decisis, Roberts writes, “commands deference
to past mistakes, but provides no justification for making new ones.”

With
Toobin’s new information, Roberts’s separate opinion can be seen not so much as
an affirmative endorsement of the ruling but as a defensive reply to Souter’s
unfiled dissent. Roberts, it would seem, was a reluctant bull in the
jurisprudential china-breaking. The blame for the activist result in
Citizens United lies first with Kennedy, who had dissented
in Austin and again in the court’s first ruling to uphold
the major parts of the McCain-Feingold campaign finance law, McConnell
v. Federal Election Commission (2003). Roberts might have withheld
his vote once the rest of the conservatives had shown they were ready to
overrule both of the earlier decisions, but a plurality opinion would have
left campaign finance law in a muddle as election season was about to get under
way.

Toobin
closes by highlighting the role that independent campaign expenditures have
played and are playing in the 2012 presidential election: the multimillion-dollar
spending by gambling mogul Sheldon Andelson in support of Newt Gingrich and by
Wyoming financier Foster Friess in support of Rick Santorum. Those
expenditures, however, appear to have been made individually, not through
corporations; and independent, individual spending on political campaigns has
been constitutionally protected since the court’s first brush with modern
campaign finance law in Buckley v. Valeo (1976).

By
contrast, corporations so far have not rushed into the opening that
Citizens United gave them for unlimited political spending
without the burden of creating separate political action committees (PACs). The
free-campaign speech crowd is applauding Citizens United as
a vindication of the First Amendment even as critics are condemning it for
tilting the political playing field further toward business interests. Both
sides may be exaggerating its impact, just as Toobin is in blaming Roberts personally for
the decision.

Monday, May 14, 2012

Racial discrimination
in housing was legal in most of the country when the U.S. Supreme Court
considered the constitutionality of a California ballot measure that prohibited
either the state or any local government from banning the practice. But with
the pivotal support of the United States government, the Supreme Court in 1967 struck
down the ballot measure, known as Proposition 14, on the ground that it
violated the federal Constitution by putting the power of the state behind
private racial discrimination.

The current
Supreme Court is likely to face a comparable issue within a year or two when the
constitutionality of California’s Proposition 8, banning marriage for gay and
lesbian couples, reaches the justices. And the position of the United States
government could once again be a key to the decision from a court closely
divided along ideological lines.

This could
be the most important practical aspect of President Obama’s decision last week
(May 9) to endorse marriage rights for same-sex couples. If re-elected, Obama
will have to decide whether the government, through the solicitor general’s
office, sides with the gay and lesbian couples challenging the 2008 ballot
measure or sit out the case.

Obama’s
slowly evolved decision to endorse same-sex marriage, announced in a hastily
arranged interview with ABC’s Robin Roberts, is evidently of profound historic
importance. But it has no immediate legal or political effect, and its eventual
political impact is hard to predict.

The
president’s announcement came one day after North Carolina voters approved, by
a 3-2 margin, an anti-gay marriage amendment to the state’s constitution. Had
the president come out a few days earlier, the North Carolina vote almost
certainly would have been about the same. It remains to be seen whether the
president’s position has any effect on the gay marriage measures expected on
the ballots in four states in November: Maine, Maryland, Minnesota, and
Washington. One clue that it might not: California voters approved Prop 8 by a
4 percent margin in 2008 even as Obama was gaining 61 percent of the vote.

As for
Obama’s re-election bid, an instant Gallup poll found that 60 percent of
respondents said Obama’s decision would have no effect on their votes. The
others divided roughly 2-to-1 in saying it would make them less likely versus
more likely to vote for Obama. Whatever people may tell pollsters, the
presidential race is likely to turn on what are always the most important
issues: the economy and war and peace.

Whoever is
in the White House in 2013, however, can determine the government’s position on
the gay marriage cases moving toward the Supreme Court. Obama has already shown
some courage, and taken some heat, by directing Justice Department lawyers to
stop defending the federal Defense of Marriage Act (DOMA), which bars legally
married same-sex couples from receiving federal benefits or tax preferences
allowed other married couples. The most advanced case on the issue was argued
before the First U.S. Circuit Court of Appeals in Boston in March and seems
likely to reach the Supreme Court during the 2012-2013 term.

The Prop 8
challenge is now on hold awaiting the decision by the full Ninth U.S. Circuit
Court of Appeals on whether to rehear the ruling by a three-judge panel to
invalidate the measure. An en banc rehearing, if ordered, would likely delay a
Supreme Court showdown until the 2013-2014 term.

The
position that a hypothetical President Romney would take on either the DOMA or
Prop 8 case seems easy to predict. Romney responded to Obama’s new stance by
repeating his previous position that he opposes marriage rights for same-sex
couples. In the White House, Romney would probably direct government lawyers to
resume defending DOMA and quite possibly would have the solicitor general argue
for upholding Prop 8 at the Supreme Court.

Obama may
have hemmed himself in on the Prop 8 case by saying, despite his new position, that
the matter should be left up to the states. Yet the Prop 8 challenge is framed
in a way that would allow Obama to join in urging that it be struck down
consistent with that view. The challengers argue, and the Ninth Circuit panel
ruled, that state voters had no adequate reason in November 2008 for
withdrawing the marriage rights recognized for same-sex couples six months
earlier by the state supreme court.

In that
sense, the case is similar to the challenge to the anti-open housing initiative
approved by California voters in 1966. In challenging the measure on behalf of
the government, then-Solicitor General Thurgood Marshall acknowledged that
California did not have to prohibit racial discrimination in housing, but
argued that voters could not use the state constitution to prevent state or
local lawmakers from enacting such a ban in the future.

The Supreme
Court agreed, by a 5-4 vote, in a decision along the lines of Marshall’s
argument (Reitman v. Mulkey). In a
one-vote case, one must assume the government’s position had some impact. The
government’s position in the Prop 8 case could likewise be significant,
especially for the justice likely to hold the balance of power between the
conservative and liberal blocs: Anthony M. Kennedy. If he is still in the White
House when the case reaches the Supreme Court, Obama will have to decide
whether he has the courage of his newly evolved convictions on this issue.

Monday, May 7, 2012

The United States was a young and deeply divided nation in the 1790s when a Federalist-controlled Congress passed a law, the Sedition Act, that effectively allowed the government to put political opponents in jail, Bill of Rights be damned. With the laws allowed to expire after the Anti-Federalists came to power, the Supreme Court never had the occasion to rule on its constitutionality. But 160 years later, the Court declared, in New York Times v. Sullivan (1964), that “the attack on the validity of the law has carried the day in the court of history.” In the early 2000s, the United States was deeply divided as a Republican president, George W. Bush, with the acquiescence of a Republican-controlled Congress, adopted a series of constitutionally dubious policies for detaining, interrogating, and imprisoning suspected terrorists. With Democrat Barack Obama in the White House, many of those policies have now been discarded. But with the legal attacks on those policies deflected one after another, it now appears that a definitive verdict will come, if ever, only from the court of history. The latest no-decision for opponents of the Bush policies came last week (May 2) when the Ninth U.S. Circuit Court of Appeals rejected a lawsuit against John Yoo, legal architect of many of those policies. Jose Padilla, the U.S. citizen held in military custody for more than three-and-a-half years, accused Yoo of giving phony legal cover for his military jailers to subject him to torture-like interrogation and imprisonment, in violation of his constitutional rights. Padilla was arrested, with much hoopla, at Chicago’s O’Hare Airport on May 8, 2002, and accused of plotting to detonate a radioactive “dirty bomb” in New York City. Bush’s designation of the Brooklyn-born Padilla as an enemy combatant allowed authorities to bypass the civilian legal system and transport him instead to a military brig in Charleston, S.C. For nearly two years, Padilla was held incommunicado, with no contact allowed with family or lawyers. His treatment in prison, as alleged in the later lawsuit, included prolonged sleep adjustment and sensory deprivation; exposure to extreme temperatures and noxious odors; administration of psychotropic drugs; and denial of access to necessary medical and psychiatric care. All of that, he alleged, amounted to torture, in violation of the Constitution as well as international law. Civil rights lawyers acting in Padilla’s behalf brought one of the early habeas corpus challenges to the Bush administration policies. Padilla’s case was skirted because of a legal technicality, but the Supreme Court ruled in a separate case in 2004 that a U.S. citizen designated as enemy combatant was entitled to some form of judicial hearing to challenge his detention. Meanwhile, the bombshell charge against Padilla seemed to evaporate. He was brought to trial instead on charges of conspiracy to commit overseas jihad, eventually convicted, and given a 17-year sentence in 2007. Prosecutors had asked for a 30-year term. Padilla and his mother, Estela Lebron, filed a lawsuit in federal court in South Carolina charging former Defense Secretary Donald Rumsfeld and others with violating his constitutional rights. The federal district court rejected the lawsuit on grounds of qualified immunity, the doctrine that protects government officials if their conduct did not violate “clearly established law.” The Fourth U.S. Circuit Court of Appeals affirmed that decision in January.
Separately, Padilla and Lebron sued Yoo, now a law professor at the University of California-Berkeley, in federal court in San Francisco in January 2008. The suit alleged that as deputy head of the Office of Legal Counsel, Yoo wrote a succession of nine legal memoranda intentionally aimed at evading “well-established legal constraints” to uphold war on terrorism policies that he himself had helped craft. U.S. District Court Judge Jeffrey White cleared the suit against Yoo for trial in a 42-page ruling in June 2009. White, a Bush appointee, found that the treatment that Padilla alleged violated clearly established standards for treatment of citizens prisoners. In its ruling last week, however, the Ninth Circuit disagreed. The three-judge panel said that it was “not beyond debate” that citizens detained as enemy combatants were entitled to the same rights in prison as citizens charged with ordinary crimes. The appellate judges also said that even though citizens are protected against torture, it was “not clearly established” that the treatment Padilla alleged amounted to torture. In his opinion for the court, Judge Raymond Smith, a Clinton appointee, noted that the court reached its decision without regard for “the wisdom of Yoo’s judgments.” Smith noted at the end that the Justice Department’s ethics unit in 2010 had concluded that Yoo “exercised poor judgment” but did not knowingly provide inaccurate legal advice. As American University law professor Stephen Vladeck noted on the blog Lawfare, the Ninth Circuit panel made the discretionary decision to skip over the question whether Padilla’s rights had been violated and rule instead on the so-called second prong of a qualified immunity decision: whether the law was clearly established at the time. The understandable but unfortunate result is to leave the legal question undetermined. It will instead be up to a later court, or perhaps the court of history, to determine whether the government may subject U.S. citizens to treatment much like the conditions regularly criticized in human rights reports on other, less freedom-loving countries.

About Me

Kenneth Jost is author of The Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and a contributing writer to CQ Researcher. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award and is an occasional analyst on national and local radio and television news programs.

The opinions expressed on the blog JostOnJustice are the opinions of the individual author and may not reflect the opinions of CQ Press or SAGE Publications, or any individual employee.

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